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2023 DIGILAW 1562 (BOM)

Kisan Baliram Rathod v. State of Maharashtra

2023-07-20

G.A.SANAP

body2023
JUDGMENT : 1. Heard. 2. In this revision application, challenge is to the order dated 21.09.2016, passed by the learned Special Judge, Akola, whereby the learned Special Judge rejected the application at Exh. 10 made by the applicants/accused Nos. 1 and 2 for their discharge in Special ACB case No. 2 of 2014. 3. In this crime, initially there were three accused. Accused No. 3 Hiraman Ghatte died on 29.04.2011, before filing of the charge-sheet. The accused No. 2/applicant No.2 died during the pendency of this application. Now, the special criminal case is pending against accused No.1. Accused No.1 retired from service, on 30.06.2005, before filing of the charge-sheet. 4. The sum and substance of the case of the prosecution against the accused is that in the year 2004, the accused No.1 was working as a ‘Divisional Controller’, the accused No.2 was working as an ‘Engineer’ and accused No. 3 was working as ‘Traffic Inspector’ ¼okgrqd fujh{kd½ - It is the case of the prosecution that in the year 2004, the process for filling up the vacant posts was initiated by the State Transport Corporation of Maharashtra. Applicant No.1/accused No.1 was appointed as Chairman of the Selection Committee, whereas the remaining two accused were the members of the Committee. The entrance examination was held between 05.06.2004 and 16.06.2004. Finally 267 candidates were selected. For the purpose of preparing final list, the Committee conducted the requisite test and in the said test, 169 aspiring candidates were held qualified for the post. It is stated that the accused persons prepared the merit list and forwarded the same to the Regional office. It was published on the notice board. Thereafter, the final list of selected candidates and wait listed candidates was displayed. It is the case of the prosecution against the accused that in the process of the recruitment, accused Nos. 1 to 3 made the corrections in the marks of the candidates. The original marks given in case of some of the candidates were scored out/corrected to favour some candidates for extraneous considerations. When the offence came to light, accused No.1 destroyed the rough selection list. It is the case of the prosecution that the accused in the process of selection committed misconduct, being public servants. Similarly, for the purpose of pecuniary advantage, by corrupt and illegal means, they tampered the mark sheets and prepared the false mark list of the candidates. When the offence came to light, accused No.1 destroyed the rough selection list. It is the case of the prosecution that the accused in the process of selection committed misconduct, being public servants. Similarly, for the purpose of pecuniary advantage, by corrupt and illegal means, they tampered the mark sheets and prepared the false mark list of the candidates. They prepared the false documents and destroyed the original documents. 5. On the basis of the complaint, the Crime bearing No.3228 of 2005 was registered against the accused for the offences punishable under Section 13(1)(b) read with Section 13(2) of the Prevention of Corruption Act, 1988 (For short ‘the P.C. Act.’) and under Sections 120-B, 420, 465 and 201 of the Indian Penal Code. After investigation, the charge-sheet came to be filed. Learned Special Judge took the cognizance. It was stated in the charge-sheet that the sanction for prosecution of the accused Nos. 2 and 3 was applied for, however the same was not granted. As far as the accused No.1 is concerned, before filing of the charge-sheet he had retired from service and therefore, the sanction was not applied for, being not necessary. 6. The accused Nos.1 and 2 made the application for their discharge. It is their case that the candidates, who were found eligible in the test and ultimately selected, have not made any complaint against them. There is no evidence to establish their complicity in the commission of the crime. It is further contended that as far as the accused Nos. 2 and 3 are concerned, the sanction was refused by the Government. As far as the accused No.1 is concerned, it is contended that sanction was not obtained for his prosecution. According to the accused, the cognizance taken by the learned Special Judge without previous sanction was illegal. There is no material in the charge-sheet to indicate that the accused have fabricated the selection list. According to the accused, there is no evidence to presume the complicity of the accused in the crime. 7. The State has opposed the application. It is contended that in the selection process 169 candidates were selected by the Committee of the accused. They prepared the merit list. The merit list was sent to the Regional Office. On the basis of the complaint of malpractices, misconduct and preparation of the false record, the inquiry was conducted. 7. The State has opposed the application. It is contended that in the selection process 169 candidates were selected by the Committee of the accused. They prepared the merit list. The merit list was sent to the Regional Office. On the basis of the complaint of malpractices, misconduct and preparation of the false record, the inquiry was conducted. The inquiry revealed that the accused in the process of selection made alternations in the marks of the candidates. The candidates, who were not eligible for selection, were selected on the basis of the alteration in the marks. The accused, conspired to obtain the pecuniary advantage by corrupt and illegal means. The investigation revealed the complicity of the accused in the commission of crime. 8. Learned Judge on going through the record found that there was sufficient material to presume the complicity of the accused in the commission of crime. Learned Judge for the limited purpose of deciding the discharge application considered the relevant material. Learned Judge ultimately rejected the application. 9. I have heard the learned Advocate Mr S. V. Sirpurkar for the accused No.1 and learned APP Mr Amit Chutke for the State. 10. Learned Advocate Mr S. V. Sirpurkar submitted that even after retirement of accused No.1, before filing of the chargesheet, the sanction for his prosecution under Section 197 of the Code of Criminal Procedure, 1973 (For short ‘the Cr.P.C.’) was necessary. Learned Advocate further submitted that the sanction applied for by the investigating officer in respect of accused Nos. 2 and 3 was refused by the Government. Learned Advocate submitted that therefore the prosecution against accused No.1 without sanction cannot be continued. It is submitted that the cognizance of the offence taken by the learned Special Judge was illegal. Learned Advocate submitted that the alleged act of commission had a reasonable connection with the discharge of his official duties and therefore sanction under Section 197 of the Cr.P.C. was necessary. Learned Advocate submitted that the case of the prosecution that the sanction was not necessary because the cognizance of the offences was taken after retirement of accused No.1 is fallacious. In order to substantiate his submissions learned Advocate has relied upon following decisions: i. S.K. Zutshi and Another .v/s. Bimal Debnath and Another, AIR 2004 SC 4174 ii. D. L. Rangotha .v/s. State of Madhya Pradesh, (2015) 12 SCC 733 iii. In order to substantiate his submissions learned Advocate has relied upon following decisions: i. S.K. Zutshi and Another .v/s. Bimal Debnath and Another, AIR 2004 SC 4174 ii. D. L. Rangotha .v/s. State of Madhya Pradesh, (2015) 12 SCC 733 iii. State of Orissa through Kumar Raghvendra Singh and Others .v/s. Ganesh Chandra Jew, (2004) 8 SCC 40 iv. Anjani Kumar .v/s. State of Bihar and Anr., (2008) 5 SCC 248 11. Learned APP for the State submitted that accused No.1 retired before filing of the charge-sheet and therefore, the cognizance of the offences taken by the learned Special Judge was in accordance with law. Learned APP submitted that in view of the retirement of accused No.1 from the service, on the date of taking the cognizance of the offences, sanction was not necessary. Learned APP further submitted that in this case the sanction was not at all necessary because the acts/criminal offences committed by the accused were not part of his official duties. Learned APP submitted that the criminal acts committed by the accused by any stretch of imagination could not be said to be reasonably connected with his official duties. Learned APP further submitted that there is ample evidence compiled in the charge-sheet to establish the complicity of accused No.1 in the commission of crime. Learned APP submitted that at the stage of framing of charge or deciding the discharge application the pros and cons of the evidence and the case of the prosecution cannot be gone into. 12. It is undisputed that the investigating officer did not apply for sanction against accused No.1. It is the case of the prosecution that the sanction was not necessary inasmuch as the accused No.1 retired before filing of the charge-sheet. It is undisputed that the sanction applied by the investigating officer against accused Nos. 2 and 3 was rejected. Accused Nos. 2 and 3 are no more and as such, it is not necessary to deal with the said aspect in great detail. Accused No.1, at the relevant time, was the ‘Divisional Controller’ posted at Yavatmal. He was the Chairman of the Selection Committee constituted for the recruitment of drivers etc. 13. 2 and 3 was rejected. Accused Nos. 2 and 3 are no more and as such, it is not necessary to deal with the said aspect in great detail. Accused No.1, at the relevant time, was the ‘Divisional Controller’ posted at Yavatmal. He was the Chairman of the Selection Committee constituted for the recruitment of drivers etc. 13. Learned APP relied upon decisions in the cases of Kalicharan Mahapatra .v/s. State of Orissa, (1998) 6 SCC 411 and State of Kerala v/s. V. Padmanabhan Nair, AIR 1999 SC 2405 and the decision of the Coordinate Bench of this Court in the case of Manohar Ganpatrao Kapsikar v/s. State of Maharashtra, 2015 ALL MR (Cri.) 2513 and submitted that the sanction is not required for taking the cognizance of the offence against the Government Servant, if the Government Servant superannuates at the time of taking cognizance of offence. The proposition of law culled out is to the effect that the sanction under Section 19 of the P.C. Act is not necessary if the accused- Government Servant ceases to be a public servant on the day of taking of cognizance. It is held that the accused, a retired Government Servant, cannot claim any immunity on the ground of want of sanction. In my view, this settled legal position therefore supports the submissions of the learned APP on the point of sanction under Section 19 of the P.C. Act. 14. The next important issue is with regard to the sanction under Section 197 of the Cr.P.C. Learned Advocate for the accused has relied upon the decisions referred above in support of his submission that the act allegedly committed by accused No.1 had a reasonable connection with his official duties and therefore, the sanction for his prosecution under Section 197 of the Cr.P.C. was necessary even after his retirement. In order to meet this argument, the learned APP relied upon number of decisions namely: i. State of Punjab .v/s. Labh Singh, 2015 ALL SCR 648 ii. Station House Officer, CBI/ACB/Banglore .v/s. B. A. Shrinivasan and Anr., 2020 ALL SCR (Cri.) 163 iii. Shambhoo Nath Misra .v/s. State of U.P. and Ors., (1997) 5 SCC 326 iv. P. K. Pradhan .v/s. State of Sikkim, (2001) 6 SCC 704 v. S. K. Zutshi and Anr. .v/s. Bimal Debnath and Anr., AIR 2004 SC 4174 vi. Station House Officer, CBI/ACB/Banglore .v/s. B. A. Shrinivasan and Anr., 2020 ALL SCR (Cri.) 163 iii. Shambhoo Nath Misra .v/s. State of U.P. and Ors., (1997) 5 SCC 326 iv. P. K. Pradhan .v/s. State of Sikkim, (2001) 6 SCC 704 v. S. K. Zutshi and Anr. .v/s. Bimal Debnath and Anr., AIR 2004 SC 4174 vi. State of Himachal Pradesh .v/s. M. P. Gupta, 2004 ALL MR (Cri.) 519 (S.C.) vii. Prakash Singh Badal and Anr. .v/s. State of Punjab and Others, (2007) 1 SCC 1 vii. Inspector of Police and Anr. .v/s. Battenapatla Venkata Ratnam and Anr., 2015 ALL MR (Cri.) 2064 (S.C.) viii. Rajib Ranjan and Others .v/s. R. Vijaykumar, (2015) 1 SCC 513 15. In my view, the decision of the Supreme Court rendered by the Bench of three judges, in the case of Station House Officer, CBI/ACB/Banglore .v/s. B. A. Shrinivasan and Anr., 2020 ALL SCR (Cri.) 163 would be required to be referred inasmuch as the position of the law settled in the remaining judgments has been reiterated in this decision. It is further pertinent to note that the facts of the case before me and the facts of the case in the decision of Station House Officer, CBI/ACB/Banglore .v/s. B. A. Shrinivasan and Anr., 2020 ALL SCR (Cri.) 163 are identical. In this case, the Apex Court has held that the protection under Section 197 of the Cr.P.C. is available to the public servants when an offence is said to have been committed ‘while acting or purporting to act in discharge of their official duty’, but where the acts are performed using the office as a mere cloak for unlawful gains, such acts are not protected. It is further held that in order to come to the conclusion whether the claim of the accused that the act he did in course of the performance of his official duty was a reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it. It is held that in such an eventuality, the question of sanction should be left open to be decided in main judgment which may be delivered upon conclusion of the trial. It is held that in such an eventuality, the question of sanction should be left open to be decided in main judgment which may be delivered upon conclusion of the trial. As far as remaining judgments cited by the learned APP are concerned, the same are not specifically referred because the proposition in those decisions is similar to the proposition of law laid down in the case of Station House Officer, CBI/ACB/Banglore .v/s. B. A. Shrinivasan and Anr., 2020 ALL SCR (Cri.) 163 It is further held that the commission of a criminal offence is not the part of the official duties of the Government Servant. It is held that if the act committed is integral to the performance of a public duty then and then only the public servant is entitled to the protection under Section 197 of the Cr.P.C. It is held that however the performance of official duties under colour of public authority cannot be camouflaged to commit crime. The public duty may provide him an opportunity to commit crime. 16. Learned Advocate for the accused mainly relied upon decisions in the case of S.K. Zutshi and Another .v/s. Bimal Debnath and Another, AIR 2004 SC 4174 , D. L. Rangotha .v/s. State of Madhya Pradesh, (2015) 12 SCC 733 , State of Orissa through Kumar Raghvendra Singh and Others .v/s. Ganesh Chandra Jew, (2004) 8 SCC 40 and Anjani Kumar .v/s. State of Bihar and Anr., (2008) 5 SCC 248 to substantiate his contention that the act alleged to have been committed by the accused had reasonable connection with discharge of his official duties and therefore, the protection provided under Section 197 of the Cr.P.C. would be available to him. In my view, in the fact situation of this case and on the basis of the material placed on record, the decisions relied upon by the learned Advocate for the accused are not helpful to his case. Accused No.1 was the Divisional Controller in State Transport Corporation. He was heading the Selection Committee. It is the case of prosecution against him that he conducted number of malpractices, forged the documents, prepared the false selection list and ultimately destroyed the rough selection list. It is to be noted that the selection of candidates by the Committee in accordance with the law and rules could only be said to be reasonably connected with the official duty. It is to be noted that the selection of candidates by the Committee in accordance with the law and rules could only be said to be reasonably connected with the official duty. The preparation of the false and fabricated selection list by any stretch of imagination could not be said to be connected with the official duty of accused Nos. 1, 2 and 3. The investigation was conducted and voluminous evidence has been placed on record to establish the complicity of the accused in the commission of the crime. It is alleged that accused No.1 destroyed the rough selection list. It is the case of the prosecution that in the rough selection list, the marks of the candidates were changed for the pecuniary advantage by corrupt and illegal means. The inquiry was conducted against accused No.1. In the said departmental inquiry he has been held guilty. The prosecution has placed on record voluminous documentary evidence against accused. The evidence on record is sufficient to presume the commission of the alleged offences by accused No. 1 with the remaining accused. 17. It is the case of accused No.1 that none of the selected candidates made any complaint against him and the other members of the Committee. It is his case that the selected candidates did not make any grievance of acceptance of any money from them. It is to be noted that the selected candidates being the beneficiary of the selection process would not come forward to make a complaint. Selected candidates are bound to be happy and content with the selection and appointment. In this case, what is required to be looked into is as to whether the accused in the process of selection altered the marks/manipulated the marks of the selected candidates. In such a case, the aggrieved person would be the candidate, who is not selected in the selection process because of such alteration of marks of the selected candidates. The conduct of accused No.1 in destroying the rough selection list, in my view, is a pointer towards his guilty mind. It is seen on perusal of record that the investigating officer has collected sufficient material to presume the complicity of accused No.1 in the commission of the crime with the other accused. 18. The conduct of accused No.1 in destroying the rough selection list, in my view, is a pointer towards his guilty mind. It is seen on perusal of record that the investigating officer has collected sufficient material to presume the complicity of accused No.1 in the commission of the crime with the other accused. 18. It is therefore necessary to see whether the commission of the offence of this nature had any reasonable connection with the official duties of accused No.1. In my view, such act could not be said to be connected with his official duties. Besides, the issue of a sanction raised by the accused is a mixed question of law and facts. The prosecution would be required to adduce the evidence to justify its contention that the sanction was not necessary, in view of the evidence on record as to the complicity of the accused in the commission of the crime as well as in view of superannuation of accused No.1 before filing of the charge-sheet. The Court would be required to consider the case of the prosecution as well as the defence of the accused to arrive at a conclusion on this issue. The issue raised by the accused in his discharge application cannot be said to be a pure question of law. In the facts situation, in my view, it would be a mixed question of law and facts and such question cannot be addressed on the basis of the facts stated in the discharge application. 19. At this stage it would be necessary to consider the settled legal position with regard to the scope of inquiry at the stage of framing of a charge or at the stage of deciding the discharge application. In this context, useful reference can be made to Tarun Jit Tejpal Vs. State of Goa and Another, (2020) 17 SCC 556 ; Niranjan Singh Karam Singh Punjabi, Advocate Vs. Jitendra Bhimraj Bijjaya and Others, (1990) 4 SCC 76 and Sajjan Kumar Vs. Central Bureau of Investigation, (2010) 9 SCC 368 . It would be profitable to consider the settled legal position which can be culled out from these decisions on the point. It is held that appreciation of evidence at the time of framing of the charge or while considering discharge application, is not permissible. Central Bureau of Investigation, (2010) 9 SCC 368 . It would be profitable to consider the settled legal position which can be culled out from these decisions on the point. It is held that appreciation of evidence at the time of framing of the charge or while considering discharge application, is not permissible. The Court is not permitted to analyse all the material touching the pros and cons, reliability and acceptability of the evidence. In the case of Tarun Jit Tejpal (supra), it is held that at the time of consideration of the application for discharge, the Court cannot act as a mouth piece of the prosecution or act as a post office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass an order of discharge. It is held that at the stage of consideration of application for discharge, the Court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offences. At this stage, the Court is not expected to go deep into the matter and hold that materials would not warrant a conviction. It is held that what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting accused has been made out. It is further held that the law does not permit a mini trial at the stage of deciding the discharge application or at the time of framing of charge. 20. In my view, if the above settled legal position is applied to the facts of this case, it would show that this application made by the applicant No.1/accused No.1 for discharge was without substance and merits. In this case, there is evidence to frame the charge against the accused. The pros and cons of the evidence and the facts cannot be gone into. If such evidence is tested on the touch stone of the credibility as expected by the accused at this stage, then it would amount to conducting a mini trial at this stage. In this case, there is evidence to frame the charge against the accused. The pros and cons of the evidence and the facts cannot be gone into. If such evidence is tested on the touch stone of the credibility as expected by the accused at this stage, then it would amount to conducting a mini trial at this stage. In view of the above, I conclude that the learned Judge was right in rejecting the application. The revision, in my view, is devoid of substance. It is accordingly dismissed. 21. The crime in question was registered in the year 2005. The charge-sheet was filed on 26.02.2014. It is therefore apparent that from the date of registration of crime almost 17 years have rolled by. As such, it would be necessary to direct the learned Special Judge to decide the trial expeditiously. Accordingly, the learned Judge is directed to dispose of the case within one year from the date of receipt of this order. 22. The criminal revision application stands disposed of accordingly. Rule stands discharged.